Block NYC school policy

WASHINGTON (BP) -- A federal appeals court should endorse a permanent block on New York City's prohibition of religious worship in public schools because the policy violates the First Amendment, the Southern Baptist Convention's religious liberty entity and others have said in a legal brief.

The Ethics & Religious Liberty Commission (ERLC) joined local and national religious organizations in an Oct. 10 friend-of-the-court brief calling for the Second Circuit Court of Appeals to embrace a federal judge's injunction. The brief, organized by the Christian Legal Society (CLS), says the NYC Board of Education policy barring churches and other faith groups from meeting in schools transgresses First Amendment clauses protecting the free exercise of religion and prohibiting government establishment of religion.

The board's policy -- which prohibits religious groups from conducting "religious worship services" in public schools -- not only bars religious free exercise, but it "requires the government to discriminate against a religious practice as if it were disfavored, rather than expressly protected, under our Constitution," according to the brief. "At a minimum, it requires public officials and courts to entangle themselves in distinguishing between 'religious worship services' and other 'religious speech and conduct' and to discriminate among various sects in doing so."

The Second Circuit ruled in 2011 that the city's ban was constitutional, prompting a crisis for dozens of churches -- including seven Southern Baptist congregations -- that used public schools for their worship services. Some moved their meetings to other facilities, but a federal judge's February ruling enabled others to continue using school buildings.

In her February opinion, Judge Loretta Preska of the Southern District of New York blocked enforcement of the ban while the case was proceeding. The Second Circuit upheld the injunction five days later but urged her to release a final ruling by mid-June.

Preska announced her decision June 29, ruling the ban violated both religion clauses of the First Amendment and making the injunction against it permanent. On appeal, the case is back before the Second Circuit.

In the brief, the CLS, ERLC and other religious groups say the school board's policy does not even pretend to be neutral on its face.

"The Board's policy openly and notoriously singles out 'religious worship services' for exclusion from the public space that is otherwise available for other social and civic functions," the brief says.

The policy empowers the government to define when a particular action constitutes worship and when it does not, the brief says.

A social function that includes the same attributes as a religious worship service -- such as singing, praying and speaking on "moral" topics -- would not violate the policy, according to the brief. "But once these activities are part of a religious event, they suddenly become outlawed."

"To accord to the state the power to decide what does and does not qualify as a 'worship service' is to inject it into ecclesiastical decisions from which it must be walled off," the brief says.

In addition to the ERLC and CLS, others signing onto the brief include the National Association of Evangelicals, American Bible Society, National Council of Churches, General Conference of Seventh-day Adventists, Anglican Church in North America, Union of Orthodox Jewish Congregations of America; American Baptist Churches of Metropolitan New York, Council of Churches of the City of New York, Brooklyn Council of Churches and Queens Federation of Churches.

The case is Bronx Household of Faith v. Board of Education of the City of New York.